Marilea Lewis | Expert Tips for Temporary Orders Hearings

We’re excited to welcome Judge Marilea Lewis as our guest today on Texas Family Law Insiders podcast. Judge Lewis is currently a partner at the Dallas based family law firm Duffee and Eitzen. She is board certified in family law, spent almost 25 years on the bench, and has received dozens of awards. She received her undergraduate and law degrees from Baylor University. Outside of work, she’s actively involved in a wide variety of community organizations. And she’s even a certified yoga instructor.

On the show we chat with her about temporary orders hearings, as well as:

  • Why temporary orders are the most significant part of many family law cases.
  • How to determine where your most significant issues will be in your case.
  • What your clients should and shouldn’t do when answering questions from opposing counsel.
  • How to use your limited time on the stand wisely.
  • Some of the common mistakes she sees lawyers making at temporary orders hearings and the three things every female attorney needs to do to get prepared for practice.
  • And more

Mentioned in this episode:

Transcript

Marilea Lewis: Don’t believe that every word that your client tells you is going to be accurate and borne out by the evidence. Remember, the truth is perception. And perception varies from person to person.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host, attorney Holly Draper.

Holly Draper: We’re excited to welcome judge Marilea Lewis as our guest today on Texas Family Law Insiders podcast. Judge Lewis is currently a partner at the Dallas based family law firm Duffee and Eitzen. She’s is board certified in family law and spent almost 25 years on the bench. Judge Lewis served on the bench of the 330th Judicial District Court in Dallas for eight years after serving as the associate judge in the same court for 10. She’s widely respected as one of the top family lawyers in the state. Judge Lewis has been selected as a Texas Super Lawyer in Family Law every year since 2012. And has also been recognized by Thomson Reuters among the top 100 attorneys in Texas, the top 50 women attorneys in Texas, and the top 100 attorneys in DFW. 

She’s been selected as one of the best lawyers in America by Woodward White since 2013. Recognized as one of the best lawyers women in the law since 2016. Named to Lawdragon’s Best 500 Family Law Lawyers in 2020, and has repeatedly been recognized by D Magazine’s Best Lawyers in Dallas. And she’s a winner of the Exemplary Judicial Faculty Award by the Texas Center for the Judiciary. Judge Lewis received her undergraduate and law degrees from Baylor University. Outside of work, she’s actively involved in a wide variety of community organizations. And she’s even a certified yoga instructor. So Judge Lewis, thank you so much for joining us today.

Marilea: Well, Holly, I’m delighted to be here. Thank you for inviting me.

Holly: So today, we’re going to talk about temporary orders hearings and how to try the temporary orders hearing. But first, can you give us a little bit of background about how you got started in family law.

Marilea: I began practicing family law when I was a fairly new lawyer, I had started with a small civil firm and decided pretty early on that personal injury and worker’s compensation were not good for me. And in light of the decisions and laws that have passed since that time is probably just as well. But I also became very involved in juvenile law practice, and as a transition from juvenile law, family law. And I would say that probably by my third, or possibly fourth year in practice, I was doing family law primarily. I thoroughly enjoyed it because it had a personal element that some areas of practice didn’t. And it was a situation where I felt I could actually help folks through a very difficult time.

Holly: I was the same way. I started out at a civil defense firm and found my way to family law. I’m definitely glad that’s where I ended up. So can you describe how you got to where you are today?

Marilea: There was an available position in the 305th district court, which is a statutory court for juvenile law cases, and my very good friend was moving on to a county bench. She called and said, there’s going to be an opening if you’d like to consider it. At the time, I really hadn’t thought about moving onto the bench, but it seemed like a wonderful opportunity to actually do what I enjoy doing on a daily basis. I applied and fortunately was selected and served as the associate judge, although in that time, when I first began, I was known as the master referee of the 305th district court for a period of six years. During that time, the title of master was amended to become an associate judge. 

So I was also designated as a magistrate so my title at the time eventually morphed into associate judge, referee magistrate, for the 305th district court. When Judge Bedard began looking for a new associate judge because her associate Judge Barbara Rosenberg had been appointed to the Court of Appeals. I made the transition at that time from the juvenile court into the family law court. That was early 1992 and she’s really showing my age here, but I was the associate judge of the 330th under Theo Bedard and I could not have asked for a better mentor than Judge Bedard. I was very fortunate to serve with some wonderfully strong, bright, dedicated people. And I was the associate judge from 1992 until my appointment first in 2002, and my subsequent election in 2002, and I served as the district judge through December the 31st of 2010.

Holly: So how’d you describe your current practice?

Marilea: My current practice is certainly divided between mediation and arbitration, which I do, and litigation. I’ve always enjoyed being in the courtroom. As you said in the opening remarks, I did go to Baylor Law School. And the thing that Baylor Law School focuses upon is litigation practice, or at least training lawyers, so they know how to walk into the courtroom and not have to take a quick refresher course before they enter. So I’ve always enjoyed litigation. And this practice allows me the opportunity to litigate cases, also to arbitrate and mediate cases. And even to do some transactional work. As you know, prenup bill prenuptial agreements, postnuptial agreements, partition and exchange agreements, those sorts of things are going to be primarily transactional. I’m also collaboratively trained. And as a perk of having served so long on the bench, I can serve as a special judge if anyone is trying to use the services of a judge without the arbitration process, but more in actual litigation situation.

Holly: But when you act as a special judge, is your decision binding on the parties?

Marilea: It is a it’s a judicial rendition. Of course, naturally, it goes back for approval by the sitting district judge.

Holly: All right. So today, we’re going to specifically talk about temporary orders hearings. And we all know, that’s a very significant part of many family law cases, and can often be the only actual hearing in a case. So it can be very, very important. Can you walk us through how you usually prepare for temporary orders hearings?

Marilea: Temporary orders hearings are extremely significant. And I cannot stress this enough, especially for practitioners who are newly involved in family law cases. The temporary orders hearing will set the tone of the litigation in my opinion. You want to be sure that you are prepared for a temporary orders hearing as much as you possibly can be in terms of knowing the financial situation of the parties, knowing the needs of the children, knowing what testimony you’re going to offer. The challenge with the temporary orders hearing is you frequently are given quite significant time limitations. And it’s very difficult to get everything you would like to get before the court in a limited amount of time. Whereas in a family law trial for final merits on the case, you can have a great deal more time, you’re going to have possibly 20 to 30 minutes per side. 

Occasionally, if you get a special setting, you can have an hour to an hour and a half per side. But you’re not going to have the full day two days, three days that you would have for a trial on the merits to actually develop the evidence and get all of the evidence and testimony before the court. So when you’re planning for your temporary orders hearing, you’ve got to look to the most significant points. are you focusing primarily on the needs of the children? Who should be the temporary, primary parent? Are you focused on the financial aspects? Are there significant financial resources for both parties to continue to meet their minimum basic needs, if there’s no support given or the support is very limited? If there’s family violence, that’s something you want to focus on from the outset. 

That’s not something you want to wait until three or four months down the road to raise as an issue. So when you’re focusing on getting your temporary orders, preparation done, identify the critical areas, finances, use of the property, parenting time with the children, mental health of the parties, mental health needs of the children, substance abuse, you’ve got to determine where your most significant issues will be. And then direct your questions and your witnesses to those areas. It is also essential that before you put any witness on the stand, whether it’s your party your client or not, that you know what the witness is going to say. I can’t tell you how many times lawyers experienced lawyers came before me on a temporary orders hearing and had not spoken with the witness. 

They relied on what their client told them the witness would say. And sometimes your clients perception is not accurate. Stop and consider they’re in a real emotionally charged time of their life. So their perception may not be accurate or their recall, recall may not be accurate. You got to do the investigation yourself. So before you put anybody on the stand, know where you’re going and know what they’re going to say.

Holly: That’s excellent advice. Do you, to what extent do you prepare your client? Or how do you prepare your client for cross examination at temporary orders?

Marilea: I think the best way to do that is to try to have an understanding of what the opposing party is going to be asking for. If you’re focusing on conservatorship, and they’re focusing on use of property, you’re kind of out of sync. And so what’s going to be important to your client isn’t going to allow you to prepare your client for how that other opponent or opposing counsel is going to be questioning your client. So preparing your witness for cross examination, you’ve got to do pretty broad questions. The things that you have to tell the client is, listen to the question. Answer only the question that is asked. You’ve got limited time, don’t go off into a narrative. Answer the question, if you don’t understand the question, ask the question be rephrased. If you don’t hear the question asked question be repeated. Don’t try to evade or avoid an answer. Answer truthfully. Once you’ve got those points, then it’s easier to say. 

And if you’re asked about your marijuana use, if you use marijuana recreationally, your answers is not going to be no, I don’t use I don’t use marijuana. Your answer should be I have used marijuana. I have used it recreationally fess up to it. Don’t try to avoid it. You know, and the other thing you don’t want your client doing is arguing with opposing counsel. Sometimes that’s difficult to get across because the clients don’t realize that they’re actually arguing. But when their response is well, why do you ask that? Why do you need to know that? I don’t think I need to tell you that they’re arguing. And that is not going to set a good tone for the hearing, or make a good impression on the judge.

Holly: Yeah, I always try and let clients know that the opposing attorney is almost always going to be trying to get a yes or no answer from them. That is probably not good for them. And there may be an explanation, and I try and encourage them to start giving that explanation. And if they’re cut off, at least then I know there’s an explanation. Like in your marijuana hypothetical, the attorneys probably gonna say you’ve smoked marijuana, haven’t you? Yes. But you know, start with the but and the attorneys gonna cut them off. But at least I know there was a but.

Marilea: Right? That way, you can go back in and clean it up. That reminds me of the Kathleen Turner answer in Romancing the Stone. You smoked marijuana, haven’t you? Well, yes, I went to college, I mean, a responsive answer. But anything beyond yes, is going to be considered non responsive. So you do have to work with your client. And they’re going to have to accept the fact that opposing counsel knows a lot more about them, than they would like that attorney to know. You’re in, they’re getting a divorce, or they’re dissolving their relationship in some shape, form or fashion. So ordinarily, the opposing party is not going to go in and be saying good things about the your, your client. Ordinarily, there’s not going to be a lot of gratitude expressed for all the good work that your client has done. 

*So they need to be prepared for the fact that if they have any skeletons in the closet, that closet door is going to be open wide, and they just need to be prepared for it. And the other thing only that is absolute sorry, that is absolutely essential is that your client must understand that he or she must be honest and candid with you. But I have a glass of wine when I get home from the evening can sometimes turn into I have a bottle of wine when I get home in the evening. So when the spouse comes in, with a photograph of the nine bottles of wine that had been drunk just in the week, rather than having a bottle of wine or possibly two bottles of wine, it makes you feel like you have not been told the entire truth by your client and it puts you at a disadvantage and certainly makes your client look non-credible.

Holly: Yes, there is nothing worse than having your client on the stand admitting to something you knew nothing about.

Marilea: Right or even alluding to it. You know, when you’re when your client opens the door and says, do you consider wine alcohol? But I asked is it true that you drink alcohol on a regular basis? The answer should be I drink wine. Yes, I drink wine. You know, you’re not trying to slip one past opposing counsel or the judge because that’s never gonna work.

Holly: So yesterday, I posted something in the Texas Family Lawyers group trying to get a feel for the time limits across the state because I know I practice regularly in Collin and Denton counties, and they have very short time limits. But I didn’t know if that was common. And it It sounded like there are a lot of counties that are in the 30 to 45 minute range. But there are also a lot of counties that have no limits at all. I was really surprised to hear such a wide variety. So what when there’s a really short time limit 20 or 30 minutes, sometimes even 45? What advice would you give to attorneys that are experiencing those short time limits for the first time.

Marilea: One of the things that I’ve appreciated about the judges in Collin County is they recognize that they put you on somewhat stringent time limitations. But they also allow you the opportunity to provide a summary of requested relief that may or may be more expansive or extensive than you could provide in other counties. They want to know what’s at issue. And consequently, if you’ve got a great summary requested relief, a very detailed summary of requested relief. It’s going to be a summary of your client’s testimony, you can put your client on and say, did you help? Or did you draft this? Did you assist in the drafting of this? Does it accurately reflect what you’re asking this court to do? Do you believe that this would be in the best interest of your children? 

Do you believe that these financial needs are being addressed appropriately? Is this something you think you would want the court to order as a temporary order? With a few very quick questions, and the admission of that summary of requested relief, you can move on to other matters if there are extraneous matters or other witnesses. If you need other witnesses to address issues like child care, or substance abuse or family violence, something else that might be also very important, but a good summary of requested relief. And of course, Holly, one of the things to consider now is with the new discovery rules, you’re going to have a lot more information, or you should have a lot more information depending upon the timing of your temporary order, then you would have had six months ago. 

Now that we are producing so much more information, for purposes of initial filings, the practitioner is going to have a great deal more documentary evidence of what’s really going on with the parties, they’ll have the 194 disclosures for one thing, but they should have supporting documents to go with that 194 disclosure. So that’s something to consider the timing of your temporary orders hearing is going to be significant. I believe that everyone’s going to have to get used to the timing of asking for temporary orders unless it’s truly an emergency if a party gets served, and has the Monday following 20 days, but once they serve, once they answer, then they’ve got 30 days in which to exchange all this discovery, then is it going to be advantageous to ask for a temporary orders hearing prior to the expiration of 30 days? Or do you wait until you’ve already gotten all of that information? 

So that’s something to consider is the impact the new discovery rules are going to have on the temporary orders hearing. Now, the other thing you need to consider is the effect of the standing order and what impact that has on your client for purposes of temporary orders. If the other party doesn’t get served or doesn’t respond in a timely manner, even though the case has been filed, if your client is the only one who is subject to the standing order, how’s that going to impact the ability of the party to actually get to funds, make orders or I’m sorry. Make appointments, do whatever needs to be done in the interim. So timing of a temporary orders hearing is very critical as well.

Holly: I think you’ll have to really consider on a case by case basis how urgent it is to get that temporary order. Is it more important to get into court quickly? Or is it more important to have that extra information before you go?

Marilea: I agree. I think one of the things we’ve learned from Zoom is that it is very frequently beneficial. In fact, in almost all cases beneficial to have to exchange documents and exhibits prior to the actual hearing. Whether you have to exchange documents three days before the hearing, or the morning of for an afternoon hearing, or by 5pm, the day before you that really gives you an edge in your hearing, that way, it’s really not a surprise, and everyone’s pretty much on a level playing field.

Holly: I hate having to exchange exhibits early. It takes all the fun out of catching the opposing party and a lie, and then pulling out their Facebook post where they said something else.

Marilea: I agree and it is difficult. That’s a great deal of fun that Perry Mason moment, you can go but what about this document and the party just kind of recoils. But of course you don’t get much of that recoil on Zoom. When the judge is looking at a screen this size, and the litigants are this big. You don’t really get the same true effect, as you did with the witness and the witness stand in the courtroom.

Holly: Yeah. So one of the things I was thinking about when I was considering the short time limits for temporary orders are cases where there’s a really high burden you have to overcome to get a certain temporary order such as you’re trying to flip custody on a temporary basis. And you have to prove significant impairment, or other cases where you have non parents involved and they’re needing to overcome the fit parent presumption or they’re needing to show significant impairment for standing purposes. Do you think it’s really possible to overcome those burdens in 20 or 30 minutes?

Marilea: It’s like trying a family violence protective order. If you’ve got 30 minutes per side, you better use the first five minutes to get your scariest stuff out first. You don’t walk your client through well, we got married on this day. And you know, for six months, we did this and a year we did this. You get to last night. She decked me or last week, he slapped me so hard I flew across the room. You got to put on your scariest stuff first. Because you you are going to have limited time. Same thing with a high burden. What is your burden to prove? 

This is not a situation where you can develop your narrative. You’ve got to know your evidence. You’ve got to anticipate objections from opposing counsel. If your evidence is child came home from parenting time with the other parent and said, Daddy spanked me that’s why I have all these bruises. Opposing counsel’s going to check because by the time the child got home, was it hearsay? Do you know the exceptions? Do you know the way to get that testimony before the court? If the child is five, and not subject to interview by the court? 

Or if the child comes home and says mommy has been smoking some funny smelling cigarette all day every day while I was with her. Is that going to get into evidence? You’ve got to be prepared not only from the evidentiary standpoint, but also for a way to protect that evidence and make it admissible. So don’t just think that you’re going to be able to go in and say, well, the child said this. Oh, it was an excited utterance. Was it three days later? Does that qualify? 

Because you’re going to have quite a few judges in this state are going to go really making the test? Because if you say, well, how is your weekend? And the child responds, oh, it was great. And you know, Mom, was smoking funny smelling cigarettes all weekend. Does that qualify as an excited utterance? Is that a present sense impression? What exactly are you going to have to do to be able to get that evidence before the court?

Holly: That’s the problem in family law cases, a lot of times that information is coming from the children. One of the things that our firm has been doing a lot and those situations where we really don’t have a good way to get that evidence in. I mean, obviously, we can say isn’t it true that you were smoking a funny smelling cigarette all day, the other day? They could deny it. But one of the things we’ve been doing is then trying to request an amicus attorney or something like that as a way to get what the child has to say before the court. Do you have do you do that? Or are there other ideas you have in that situation?

Marilea: Well, I think that certainly asking for drug testing instanter based upon information and belief, not personal knowledge has been successful in many cases, because most of our judges, if not all of our judges are going to want to err on the side of caution. And if they believe there’s any need for it, then by all means they’re going to order it if it’s seen as a means of protecting the children. Now, I think that ordering a drug test, whether it’s a ua or whatever, is different than asking for sober link for 90 days because if you’re going to go in and say this person has a significant substance abuse problem and I want him or her on scram or sober link or whatever for 90 days then you’re going to have to prove that there’s a significant problem because you haven’t met your threshold test. 

And you may not be able to do so in the limited amount of time that you have. But asking for a preliminary baseline test, I think is never necessarily wrong. You have the right to do it. You’ve got a lot of tools available in family law that aren’t available in other areas of practice and all of my colleagues in civil practice are just constantly astonished. I was speaking with a partner of mine who at a former firm who does primarily civil work and as well let’s just get a psychological evaluation. And he looked at me and he said can you do that? Well yes as matter of fact you can. It’s what Jeff Cohen always used to say about the difference that in practice. In civil law the courts can take your money and criminal law the courts can take your freedom. In family courts the courts can take your money your freedom your children and your dog, so be aware of where you are and the authority the court has to make orders.

Holly: So kind of changing topics just a little bit. There are certain counties Dallas being one of them I think Harris there may I’m sure there are others as well where you have your temporary orders hearing generally in front of associate judge. But then you have the opportunity to de novo if you aren’t happy with the original ruling. Does it change your strategy at all if there is a possibility of a de novo?

Marilea: No not my strategy because I assume that everything is going to be de novoed. Whether I de novo it or my opposing counsel de novos it, I just operate from the presumption that there’s going to be a request for de novo so I’d better do my very best job that I possibly can at temporary orders. Now the associate judges in Dallas do yeoman’s duty in terms of how they’ve been adapting with the Zoom hearings and trying to accommodate all of the many cases that they hear. So I really appreciate their dedication and devotion. And that’s been my experience with judges across the state who are all trying to do the very best they can in a very difficult situation. 

But if you take the position that you’re going to have to do this a second time you might as let’s get it right the first time because it’s much harder to get it the second time. Meaning if you got it right the first time and your opposing counsel de novos the chance of the district judge doing anything completely different is slim to none unless you’ve got a great deal of different evidence than you had at the temporary orders hearing. So you want to do it right the first time. It’s just like a final trial Holly and you should know this. You go in thinking somebody’s going to appeal something so I want it all on the record. And you want to get it right the first time because in my mind it’s much more difficult to overcome a negative ruling than it is to actually defend a good ruling.

Holly: So with the de novo it’s supposed to be a clean slate though right? It’s supposed to be like the first hearing never happened but in practical reality that’s not the case. Would you agree?

Marilea: Sadly I would. I’ve had that discussion with many people about de novo and I always am somewhat surprised when I get a ruling that says the ruling of the associate judge is affirmed. That’s really not what’s supposed to happen. What’s supposed to happen is the district courts supposed to make a ruling and not consider the orders that are or the ruling or the report or whatever that the associate judge did. So that is something that we do have to kind of watch for.

Holly: Do you recommend that all attorneys if there’s not a court reporter in associate judge’s court that they have one there for the temporary orders hearing because of the possibility of de novo?

Marilea: Depends on what your client’s going to say? Your clients the one smoking the funny smelling cigarettes no why would you want a reporter? It depends on what your evidence is going to be. Reporters and records are great you know for a lot of years people would choose to do that simply because they were using a temporary orders hearing as an examining trial. When they determine when they when folks many years ago believed that the de novo had to be held held within 30 days, then the temporary orders hearing really was just free discovery. And so having a recorder was actually beneficial. Because of the changes in the family code. And because of the changes to the discovery rules and the recent opinions of the court, I don’t know that a reporter is as necessary, there are cases where you are going to want to record simply because of the nature of the testimony. 

But you do need to be careful about that, because that’s going to increase the cost of your litigation tremendously. Just because you get your court reporter ready at nine o’clock in the morning, your case doesn’t get called until 11. You’ve already paid an appearance or an appearance fee for the reporter and two hours of the reporter’s time, even though he or she hasn’t taken a single word of testimony. So that is something that can be very, very beneficial. I use reporters frequently, not necessarily for temporary orders hearing. But for orders after the initial temporary orders hearing, when we anticipate there will be much more substantive information available.

Holly: What are some common mistakes, you see lawyers making at temporary orders hearings?

Marilea: Lack of preparation, is the biggest one. Lawyers, some lawyers tend to become complacent, oh, well, this judge always does 50-50 or this judge is never going to kick one parent out of the house, or this judge is never going to do this or this judge always does that. And they become complacent and assume because the judge may have ruled in a somewhat consistent manner, on things in the past that the judge is going to rule the same way in every case. And my experience with the judges across the state has been that they do try to hear everything and decided on a fact by fact basis. They’re not listening to the case, as if, oh, this is the same case I had last week, they are listening to the case that’s before them. And so they’re going to listen for the facts and decide it on a case by case fact driven basis.

Holly: One of the common mistakes that I see is lawyers coming into a new county or a new particular court for the first time and not really being familiar with their procedures. I had a case in Collin County once where the other lawyer apparently had never had a temporary orders hearing in this particular court, and didn’t realize they really mean it when they say 20 minutes a side, and you will get cut off and you will not get to continue with your case. So she spent nine minutes on an opening statement. And that really killed any opportunity of success. She never even got to any of the meat of her arguments. And I think if she had spoken with the lawyer who regularly practices in that court, she would have known a it’s 20 minutes aside, it’s ticking down when you run out you’re cut off, you do not get to say anything else.

Marilea: And you know, opening statements, I’d much rather make a closing statement than an opening statement, because the judge is going to decide what the evidence is, and was. And so when you spend time, say, and the evidence is going to show, and we believe the evidence will show the court will hear that. Now, if your opposing party makes or opposing counsel makes an opening statement and makes promises to the court about what the evidence will show. I’m sure you want to take note of that. So you can say, Judge, you were told that you were going to hear XYZ but instead you heard ABC what happened to the promise made that you were going to hear this evidence, we asked you to deny the requested relief. Opening statements should not be the bulk of your presentation at a temporary orders hearing.

Holly: Would you do them at all, at temporary orders?

Marilea: Occasionally I do but I never do them right after my opposing counsel. If I’m the respondent, I will always defer until presentation of my case in chief, because I then have some knowledge of what the evidence has already shown. If I’m the petitioner or the movant, it may be a 60 second overview of what we’re trying to accomplish. The evidence is going to show that my client needs this because. Let’s hear from the evidence because you know, what we tell juries all the time is whatever the whatever the attorney says isn’t evidence. It’s the same thing for the judge in a temporary orders hearing. Argument isn’t evidence it’s argument. And our judges know the difference.

Holly: Like I like to be able to give a brief opening but when it’s 20 minutes a side, I almost never do unless there’s some very unique issue I need to make sure the judge is aware of before we even get started. You’ve said a couple of times about preparation being the key and unfortunately, not all clients have a lot of money to pay for extensive preparation for a temporary orders hearing. What advice would you give to attorneys who are trying to prepare for a hearing on a tight budget?

Marilea: You still need to be prepared. Your preparation may look different. You may not have all the bells and whistles, meaning the PowerPoint and they wonderfully marked exhibits and the color coded graphs and everything that you can have, when the sky’s the limit. But you still need to talk to your client, and to whoever you’re going to call as a witness, that’s preparation. Don’t put your client on the stand without telling your client, what’s going to happen. You’ve got to manage expectations. And you’ve got to let your client understand this is not a dress rehearsal. 

It may be ultimately turned out to be one, but you can’t go into it with that thought, you’ve got to go into it thinking I’m going to do the very, very best I can, because I want my opposing counsel to have to be the one to de novo this, if in fact there’s going to be a de novo. So you’ve got to be prepared. And you know, the judges do appreciate organization, they do appreciate having your exhibits marked and knowing that they’re going to be admissible. You know, if you’ve got some while exhibit that is just wonderful, but totally inadmissible. either take the time to have a plausible reason that it should be admitted, or don’t waste your time trying to get it in. Work with what you’ve got. That’s all you can do.

Holly: In our office, we always send questions to clients in advance. I know not all attorneys do that. But one of the things I like to do is try and figure out do I have a very talkative client? Or do I have a yes/no client. And the talkative ones when we have a time limit, I’ll always have a discussion with them about okay, if you start, I know you have a lot to say, but we need to make sure we get to everything. If you’re talking and I say thank you. That’s your cue to stop.

Marilea: Right? I always hate to direct to my own clients answers is non responsive. But occasionally, you have to do that to get them to be quiet, because they’re just burning up the clock. And you’ve got so much more to get to.

Holly: So if you could give one piece of advice to young family lawyers out there, what would it be?

Marilea: Oh. One? 

Holly: If you have more than one, I’m happy to hear them.

Marilea: I can tell you my number one would be if you don’t enjoy family law, go do something else. This is an area of practice that is not something that everyone enjoys. I think counselors, young lawyers who come in with the misperception that, oh, it’s family law, it’s going to be easy. It is not easy. It is challenging. If your clients are in a terrible place in their life, or narrowly whether it’s a divorce or a modification or whatever brings them into your office, they are not happy. And that’s why they’re coming to see you not that you’re necessarily going to make them any happier. 

But they’re not happy. And consequently, you need to be able to deal with their client who I’m sorry to deal with their issues, give them the best possible legal advice, and be able to separate your life from their lives. But you’ve got to enjoy it while you’re doing it. I’ve seen too many young lawyers, who sadly get too involved in their clients issues and can’t separate and that takes its toll on them. And then there are lawyers who just kind of compartmentalize the client’s issues, and don’t necessarily provide the best advocacy that they could. But the people who tend to not do as well in family law are those who don’t enjoy it. I mean, don’t have a passion for it. If the attorney’s desire is to go help build buildings, then he or she needs to be in construction law or doing something else. 

It isn’t being in the courtroom on a routine basis in a family law case because that’s what they find available. So my advice would be don’t do family law unless you enjoy it and feel passionate about it. Because it’s going to take its toll on you. I do not know a single lawyer and Holly I don’t know if you do that has not spent hours working for a client without any expectation of getting paid, worrying about a client to the point that it actually interferes with what you may be doing in your own life. Or arguing with the client because they have such unreasonable expectations. So family law is a demanding, challenging practice. And so I would not recommend it for someone just as a side practice. It’s got to be your focus.

Holly: And I agree completely about having to compartmentalize it but also being compassionate about it. You have to find that right balance and I feel like i’ve been doing family law since 2008 and for the vast majority of cases I’m able to separate my personal and professional life. Still care about their case care about the client want to do a great job for them but be able to sleep at night. And there’s certainly been a handful over the years that have kept me up at night and were you know extremely stressful. Thankfully there’s been few and far between but it definitely comes with the territory.

Marilea: It does and one thing young lawyers need to learn to do is not become true believers. Your client is going to tell you his or her perception and frequently what he or she wants you to believe. You cannot assume that every word that comes out of your client’s mouth is the absolute truth. And you can’t assume even if it is the absolute truth that is the only truth. I had a case many years ago that was just confounding because the issue was where do the children spend the afternoons. And mom was saying oh they’re at my house five afternoons each week. And dad said they’re at my house three afternoons a week. Mom brought in four witnesses who said they saw the children playing in her front yard at least ordinarily four to five afternoons a week. 

Dad brought in four witnesses who said of these children over at my house ringing my doorbell three or four times a week in the afternoon each week. It was truly one of the more interesting cases because trying to ferret out what actually was going on was a challenge. So don’t become a true believer. Don’t believe that every word that your client tells you is going to be accurate and borne out by the evidence. Remember that truth is perception and perception varies from person to person. Also there’s going to be three sides to every story in a family law case. His hers and the judge’s truth. So you’ve got to take that into consideration as well.

Holly: And also letting clients understand that the judge’s truth may not be the truth that they want so if they can reach reasonable agreements maybe they should do it.

Marilea: Yes and that’s a significant thing that young lawyers need to do is they don’t need to see agreement as some failure. If anything agreement is much more a victory. Anything you can do to prevent your clients from having to get on the witness stand and bear their souls is beneficial. Because once those words have been spoken under oath it really is difficult to modify them or retract them.

Holly: I agree completely. Well I think we’re just about out of time but I wanted to thank you so much for being my guest today on the podcast. My very first guest for my very first episode. I greatly appreciate it and any last words you’d like to say for the Texas family lawyers out there?

Marilea: Well I think that the family lawyers out there just need to keep on doing what they’re doing because from what I’ve seen dealing with family lawyers across the state of Texas they’re doing a good job. They are handling themselves well. They’re representing their clients well. And I think that the folks of Texas have good representation in our family lawyers. What I used to tell young lawyers when I’d be asked to speak to women’s groups, what I’d tell the young women lawyers is you need to do three things in addition to everything you do to get prepared for practice. You need to find comfortable shoes because you’re going to be on your feet a lot. So invest in good shoes that you can stand around and walk around in for extended periods of time. 

Buy clothes that fit so that you’re not tugging on them or pulling on them or they’re not too short or they’re not too tight. Buy clothes that fit in which you feel comfortable, and find a good shade of lipstick because nothing is going to perk you up like seeing a new tube of lipstick. Some of that bleeds over to young male lawyers too young man should have comfortable shoes and a good suit that fits well, because when you are comfortable in your clothing and your clothing looks good on you, you’re going to project more confidence. And when you project more confidence, you’re going to be able to focus not just on your presentation, but also on the needs of your client.

Holly: Thank you so much for being here today and that’ll wrap up our episode.

Voiceover: The Texas Family Law insiders podcast is sponsored by The Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.draperfirm.com.

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